What is a Deed of Variation, and when might you need one?

A fundamental principle of English law is that everybody should be at liberty to leave their Estate to whomever they choose when they die. However, sometimes, the chosen beneficiaries may wish to change their entitlement under the Will. The law permits them to do so in specific circumstances through the use of a Deed of Variation.

What is a Deed of Variation?

A Deed of Variation alters the terms of a Will after the testator (the person who made the Will) has died. It can also be used to change the application of the Intestacy Rules, which dictate how an Estate should be distributed if a person dies without leaving a Will.

You can use a Deed of Variation to redistribute the deceased’s assets, set up a trust, or include additional beneficiaries.

When might you use a Deed of Variation?

There are several reasons why you might choose to enter into a Deed of Variation, including the following:

To distribute the Estate in a more tax-efficient way.

  • To provide for children or grandchildren born after the testator’s death.

  • You don’t need your entire share and would like some of it to benefit somebody else.

  • You would like some of your entitlement to go to charity.

  • To add other beneficiaries who you feel deserve a share of the Estate.

  • To even out the distribution, if some beneficiaries have received more than others.

How do you make a Deed of Variation?

Unsurprisingly, various legal requirements apply to Deeds of Variations. The exact requirements depend on the effects of the Deed, but generally speaking, they include the following:

  • The Deed must be in writing.

  • The Deed must be made within two years of the testator’s death.

  • All beneficiaries who will lose out under the Deed must sign it.

  • The Deed must clearly state the changes made to the distribution of the Estate.

  • If the Deed alters the amount of inheritance tax payable, you must send a copy to HMRC.

  • If the amount of tax payable increases because of the Deed, the executors or administrators must sign it.

  • The Deed must include a statement that the parties signing it intend the variation to be effective for the purposes of inheritance tax and capital gains tax.

  • An independent witness must witness each signature.

Deeds of Variation provide an invaluable opportunity for the beneficiaries under a Will or the Intestacy Rules to redistribute the deceased’s assets. However, your Deed must comply with strict legal rules and requirements to be effective, both legally and for tax purposes. Furthermore, Deeds of Variation can sometimes have unexpected consequences, notably in terms of the tax position, so it’s essential to take advice on the effects of your proposed changes before proceeding.

Can an executor purchase property from an Estate?

When someone dies, they entrust their executor with settling their affairs and distributing their estate in accordance with their wishes. To facilitate this, executors need access to all of the deceased’s assets, including their money and property. The law seeks to protect beneficiaries’ interests by imposing strict legal duties and rules on executors. One such rule is known as ‘the rule against self-dealing’, which applies when executors wish to buy estate property.

What is the rule against self-dealing?

The duties imposed on executors include acting in the beneficiaries’ best interests and not putting themselves in a position where their personal interests conflict with those of the beneficiaries. When an executor wishes to purchase estate property, a clear potential conflict arises. As executor, they must act in the beneficiaries’ best interests and maximise the estate’s value. As a purchaser, it is in their own interests to secure the best possible purchase price for the property. To address this potential issue, the rule against self-dealing prohibits an executor from buying estate property, even at a fair market value.

What are the implications of ignoring the rule against self-dealing?

The implications of ignoring the rule against self-dealing can be severe. The beneficiaries are at liberty to void the transaction at any point in the future, even if they suffered no loss and were initially amenable to the purchase.

How can you avoid the rule against self-dealing?

There are many reasons why an executor may wish to buy estate property. For example, if the executor is the deceased’s child, they might want to buy the family home. There are several ways in which executors can proceed with a purchase without falling foul of the rule against self-dealing. They include the following:

  • Relying on wording in the deceased’s Will: If the Will includes a clause expressly excluding the rule against self-dealing, an executor may be able to purchase estate property. However, the wording must be exceptionally clear and unequivocal, and executors must exercise caution when seeking to rely on such a clause.

  • Seeking the beneficiaries’ ‘informed consent’: If all beneficiaries agree to the purchase, they can approve it by giving their ‘informed consent’. This involves each beneficiary receiving proper legal advice and the parties following the relevant legal procedures.

  • Asking for the Court’s approval: The Court can authorise a sale of estate property to an executor. However, this is not a mere ‘tick-box’ exercise; the Court will decide each case on its facts.

The rule against self-dealing is often overlooked by executors, but its effects can be potent and far-reaching. To ensure compliance, you should always seek expert legal advice before purchasing property belonging to an estate of which you are executor, even if there is a clause in the deceased’s Will purporting to exclude the rule.  

BSG Solicitors Shortlisted For Family Award

BSG Solicitors are thrilled to announce we have been shortlisted at the inaugural British Family Law Awards 2024 in the category Excellence In Client Care.

The British Family Law Awards have been established to recognise excellence and celebrate success across the family law sector. The event is organised by the Today’s Media Group who also run the highly regarded British Probate Awards and British Conveyancing Awards.

The Excellence In Client Care award is judged on how the firm operates in the best interests of the client and embeds a culture of excellence. Each entry has been scrutinised by a judging panel made up of industry experts to establish the shortlist, with the winners announced live on 25th January at a black tie event in Bristol.

Barbara Richardson, Head of the Divorce and Finance Team at BSG Solicitors commented:

“To be shortlisted in this category exemplifies what we strive for at BSG – delivering the very best service for our clients and achieving successful outcomes.

We are delighted to receive this recognition and to be shortlisted against some of the largest firms in the country shows that we are able to provide clients in Lancashire the very highest level of expertise and experience across the full range of family law services.”

BSG Complete Dare2Dip Challenge!

A team of intrepid adventurers from BSG Solicitors have successfully completed the Dare2Dip Challenge in aid of CancerCare.

This year marks CancerCare’s 40th Anniversary and they asked businesses and individuals to show their support by taking the plunge into some very cold water! BSG decided to make this challenge a little harder and combine this with one of Grunnill Fitness’ adventure trails before immersing themselves in a tarn at the top of a hill in the Lake District.

Partner Rebecca Lauder commented:

“It was an amazing experience and a wonderful opportunity to show our support for a charity that holds special significance for us at BSG Solicitors.

A huge thank you to Emma Grunnill for guiding us through warm-up activities and leading the trail before our icy dip. The walk beforehand, coupled with finishing in the dark, definitely added to the challenge.

Emma Edwards, Partner at BSG Solicitors and a Trustee at CancerCare added:

“The services and support provided by CancerCare across South Cumbria and North Lancashire are invaluable to people coping with cancer diagnosis or bereavement. The vast majority of funding comes from public donations and I’m delighted we’ve been to show our support and Dared2Dip!

Of course it would all be nothing if it wasn’t for the wonderful people who have donated to our fundraising efforts, we really are so grateful to them. Thank you also to everyone at BSG Solicitors, not only those who took part but everyone who donated, provided much needed encouragement and shared our social media posts.”

Click here to donate and show your support.

BSG Solicitors Dare2Dip

We are delighted to be taking part in the Dare2Dip Challenge supporting CancerCare.

This year CancerCare have asked us to take the plunge, get out of our comfort zones and into some very chilly water! Whilst there are lots of ways people can take part in this fund-raising activity, we thought as desk dwellers we would up the ante and take on one of Grunnill Fitness’ adventure trails, before submerging ourselves in a tarn at the top of a hill.  To make this even harder we are starting our adventure at the end of the day on Friday 17th November as light falls and finishing in the dark.

With the assistance of personal trainer Emma Grunnill, who was recently placed 3rd in Natural World’s strongest woman, we will be warming up before embarking on our walk and then bracing ourselves for a fresh dip in the tarn.

Rebecca Lauder, Partner commented:

“As soon as we heard about Dare2Dip we knew we were up to the challenge. We briefly discussed ice baths in the office car park but thought we could make this even tougher. CancerCare is a brilliant charity which is close to our hearts at BSG Solicitors, one of my business partners, Emma Edwards, is on the board of trustees and we’re always keen to show our support.”

This year marks CancerCare’s 40th Anniversary. Over the last four decades, they have helped tens of thousands of people find the strength to face the future after the devastation of a cancer diagnosis or death of a loved one. It costs nearly £2m each year to provide free professional therapy to local people and more than 90% of this comes from public donations.

Click here to donate and show your support.

Enforcing financial orders

Having successfully obtained a financial order following divorce or dissolution of a civil partnership, this does not necessarily represent the end of the road. This is because further legal action may still need to be taken to enforce that order. This can sometimes be the case, even if the order was reached on mutually agreeable terms, where the reality of the financially stronger spouse or civil partner having to part with any money or assets may be causing some delay. Below we look at what can be done to remedy this problem.

How can a financial order be enforced?

In most cases, once the court has either made or approved an order as to how the matrimonial or partnership finances are to be split, the relevant payments or property transfers will be made in accordance with the terms of that order — and the parties can move on. Sadly, however, in some instances, the paying party will simply refuse to part with the money or assets which they are due to pay or transfer to their ex.

Fortunately, there are a number of ways of legally addressing a refusal to pay up, where the courts have various robust powers to ensure compliance with any financial order made. This will be the case even if an order was agreed by consent, provided it was put before a judge for the court’s approval, in this way making that consent order legally enforceable.

The potential routes available to enforce the party in default to comply with a financial order can include a charging order, an attachment of earnings order, a third party debt order, a warrant of control, or various orders relating to the sale or transfer of property.

Which option is best to enforce a financial order?

When it comes to enforcing a financial order, the best available option will depend on both the nature of the order and the sums involved. In cases where a large lump sum payment is due, the court can be asked to secure the money owed by placing a charge over any property owned by the defaulting party. This is known as a charging order. This is like having a mortgage in favour of the non-defaulting party, where an order for sale can subsequently be sought if the money is still not forthcoming. In contrast, where spousal maintenance has not been paid, an attachment of earnings order can be sought, requiring the employer of the defaulting party to deduct this money directly from their wages.

Other enforcement options can include a third party debt order, asking the court to seize money, usually held in a bank account in the name of the defaulting party, in full or partial settlement of the sums owed; a warrant of control, asking the court bailiffs to seize and auction off any goods belonging to the defaulting party; and, in the context of property adjustment orders, an order for the defaulting party still living in the property to leave and/or for the court to sign the relevant papers where the defaulting party refuses to do so.

Importantly, even though there will be a cost to taking proceedings to enforce a financial order, it is usually possible to ask the court to add these costs to the money owed so that reimbursement can also be claimed from a former spouse or civil partner.

Legal disclaimer

 

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

 

 

 

What is a Property Trust Will?

For many of us, the most valuable asset that we will own during the course of our lifetime will be the property that we live in. Understandably, therefore, this is the asset that we will want to protect, both from future care home fees, as well as from any second marriage or civil partnership, where a surviving spouse or civil partner remarries upon the death of the other. Below we look at how a Property Trust Will can help in either scenario.

Property Trust Wills and care home fees

Jointly-owned property is disregarded from any residential care needs assessment, at least for as long as any spouse or civil partner remains living in it. However, once a person passes away — and property is left to the surviving spouse or civil partner under the terms of a Will or in accordance with the rules of intestacy — the deceased’s share of the family home can be factored into any financial assessment for the surviving spouse or partner.

At present, if a person enters into full-time residential care in England and Northern Ireland, and they have any savings or assets worth more than the £23,250 threshold then, generally speaking, they will have to pay the cost of care themselves. Even though the government has announced a care-costs cap of £86,000 as from October 2023, providing financial protection from unlimited care costs if these reforms come into force, the matrimonial or partnership home may still need to be sold to pay for care home fees.

A Property Trust Will, also known as an Asset Protection Trust Will, provides an effective legal mechanism for couples to ensure that on the death of the first, their share in the property will not be factored into any financial assessment if they need to go into care in the future. This will therefore avoid the full impact of care home fees and help to safeguard any inheritance for the couple’s children as far as possible.

Property Trust Wills and second marriages

Similarly, when it comes to second marriages, if a couple make Wills leaving their assets to each other on the first death, and to their children or other family members on the second death, the surviving spouse of civil partner will still ultimately own all of the combined assets. The problem with this is that the survivor is free to change their Will at any time, potentially leaving the first party's chosen beneficiaries completely cut off.

The survivor could also remarry, which means that their Will would automatically be revoked and, again, the chosen beneficiaries of the first person to die will lose out.

A Property Trust Will can ensure that assets are received by the beneficiaries as chosen by a couple from the outset, regardless of who dies first, where this type of trust mechanism can be extremely useful where a couple have children from previous relationships.

How does a Property Trust Will work?

A trust is basically a legal arrangement which, in the case of a Property Trust Will, is typically a life interest trust included within a Last Will and Testament. This is where a surviving spouse or civil partner can continue to occupy the family home for as long as they need to, before the property passes on to the next generation. The survivor will be able to benefit from the deceased’s share of the property, without actually owning that share, with the property passing to specified beneficiaries when their interest comes to an end.

The advantage of a Property Trust Will is that if the survivor needs full-time care, only their own share of the family home can be assessed towards residential care fees. This is because they do not own the deceased’s share, but simply have a life interest to use it. Equally, they cannot bequeath that share to someone else, nor can that share form part of the marital or partnership assets if they choose to re-marry or enter into another civil partnership.

However, Property Trust Wills are a very specialised area of law, where it is essential that professional advice is sought to ensure that a couple’s wishes are met.

 

Legal disclaimer

 

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

 

 

 

 

 

Legal rights for grandparents 

Sadly, where family relationships have broken down, especially when parents separate, it is not uncommon for grandparents to find themselves in a situation where they are denied any contact with their grandchildren. Below we look briefly at the law in this area, outlining the legal rights for grandparents around spending time with their grandchildren. 

Do grandparents have automatic rights over grandchildren?

Even for those grandparents who have previously had regular caring responsibilities for their grandchildren, or the emotional bond is otherwise strong, the law does not grant an automatic right to a relationship. This essentially means that if a dispute arises over contact with a child, for example, where the parents separate and one set of grandparents become estranged, a grandparent cannot assert an automatic right to spend time with a grandchild.

Grandparents also do not have an automatic right to apply to the court for what is known as a child arrangements order. This is an order typically used by separated parents to decide the issue of custody and contact, but can also be used to determine the nature and extent of any contact with wider family members. However, the good news is that it is open to grandparents to apply to the court for leave. This simply means that they first need to ask the court for permission to be heard about the issue of contact.

Provided permission is granted, the court can then go on to consider whether or not contact between a grandparent and grandchild is in the best interests of that child. There are various factors that the court will take into account when deciding the issue of contact with grandchildren, including the nature and strength of the existing relationship between a grandparent and grandchild. However, ultimately, the child’s welfare will always be of paramount importance, with reference to the following welfare checklist:

•   the ascertainable wishes and feelings of the grandchild in the light of their age and understanding at the date of the application

•   the grandchild’s physical, emotion and educational needs

•   the likely effect on the grandchild if circumstances change as a result of any order

•   the grandchild’s age, sex, background and any other relevant characteristics

•   any harm the grandchild has suffered or may be at risk of suffering

•   the capability of the grandparent(s) in meeting the grandchild’s needs.

 

Needless to say, grandparents can often find the prospect of court proceedings daunting, where the grandparent-grandchild relationship will inevitably come under close scrutiny. However, with the right advice and representation, it is possible to re-establish regular contact with a grandchild. This can also often be achieved with recourse to the courts.

How can contact disputes over grandchildren be best resolved?

In circumstances where family relationships have broken down, and agreement cannot be reached around grandparents spending time with their grandchildren, mediation is often used as an alternative to court proceedings. Before applying for a child arrangements order, an applicant must first show that they have attended a mediation meeting in any event.

However, mediation is not simply a box-ticking exercise, but can be a productive way of getting the parties to talk about what is best for the child and finding some common ground. With the help of a mediator, this can give the parents and grandparents the opportunity to amicably reach an agreement about contact without recourse to the courts. 

 

Legal disclaimer

 

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

Buying at Auction FAQs

If you are considering purchasing a residential property at auction, this is very different to the more conventional method of buying a house via an estate agent, not least when it comes to the timescales and potential risks involved. Still, in the current economic climate, securing a property at a potentially discounted price is something regular homebuyers, as well as property investors, are becoming more and more interested in.

Below we have set out three frequently asked questions to help you make an informed decision as to whether buying a residential property at auction could be right for you.

What are the timescales involved when buying at auction?

As the entire process is designed to be extremely quick, finances already need to be in place before you bid. This is because you will usually be required to put down a 10% deposit on the day, where contracts are treated as exchanged as soon as the hammer goes down. 

You will then usually have between 14 days to 6 weeks to pay the remaining balance of the purchase price. If you fail to complete by the contractual completion date, very often just 20 working days from the date of the auction, this can mean that you will lose the deposit monies paid, along with the property. You will also be in breach of contract.

What are the risks involved when buying a property at auction?

In addition to ensuring that you can pay the purchase price within a short period of time, there are various other risks involved when buying a property at auction. This is because it is not uncommon for auction bidders to overlook important legal issues that could impact the value of the property or undermine any potential plans that they may have for it.

It is therefore important to have a solicitor look over the property legal pack on your behalf prior to bidding. This should be available from the auction house, typically to download, and will include things like a copy of the property’s title, the results of land registry and local searches, and any special conditions attached to the sale, such as clauses that prevent development or certain types of use. It should also include information about any planning permission granted in relation to the property, any leases or tenancy agreements that may be in place, and information about the property’s fixtures and fittings.

Importantly, once the hammer falls on your winning bid, you are legally committed to buy the property and cannot back out if you subsequently discover any problems.

Do I need to pay for a survey before I bid on a house at auction?

The responsibility for checking that the property matches its auction catalogue description lies with the buyer. This means that you will need to view the property and, if you would like to know the condition of the property, get a survey done before the auction takes place.

Paying for a survey on a property that you are not sure you will successfully secure can seem like a costly risk, but the risks associated with not getting a survey done, and possibly buying a property with serious structural issues, means that this is strongly advised.

Needless to say, these ‘Buying at auction FAQ’s’ answer only a few of the possible questions that potential bidders may have. If you are looking to purchase a property at auction, it is always best to first seek expert advice, tailored to your specific circumstances and needs.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.

 

 

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